Bad faith

(This piece first appeared in the Asheville Citizen-Times on October 22, 2006.)

If they had voted away the right to bear arms, we’d have had a revolution. When they gutted habeas corpus, we hardly noticed.

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” – U.S. Constitution, Article I

America confronts a serious threat from terrorism, but faces neither rebellion nor invasion.

No matter. With little debate 65 U.S. Senators voted September 28 to deny habeas corpus review for alien detainees in U.S. custody. Every Republican but two approved the “Military Commissions Act of 2006,” a broadly written bill concerned primarily with tribunals for terror suspects detained since September 11. Twelve Senate Democrats joined the Republican majority.

Thirty-two Democrats and 218 Republicans (all but seven) approved the final bill in the House. And so Congress repudiated a fundamental principle of liberty that predates the Magna Carta.

Ironically, the 14 Guantanamo suspects facing charges receive limited due process under this bill. Hundreds of others face legal limbo, barred from contesting their indefinite imprisonment.

Habeas corpus (“you have the body”) is not a right many Americans use daily. Still, the “Great Writ,” the prisoner’s right to challenge the king’s reasons for jailing him, has been a cornerstone freedom for centuries. Until now.

"What the bill seeks to do is set back basic rights by some 900 years," said Senate Judiciary Committee Chairman Arlen Specter (R-PA). He then voted for the bill he called "patently unconstitutional on its face."

His colleagues also knew that the Supreme Court will likely overturn the habeas provision. But a party rocked by scandals and an unpopular war in Iraq needed a divisive vote with which to paint Democrats soft on terrorism.

All who voted yea proved they were soft on the Constitution.

To recap, 65 Senators and 250 congressmen approved a bill that undermines the Constitution they swore a solemn oath to uphold. President Bush will sign it.

Consider that when asked, “Who do you trust?” But there are more skeletons in this closet.

The War Crimes Act that enforces the Geneva Conventions makes cruel, inhuman or degrading treatment of prisoners a federal crime. When the Supreme Court ruled this summer that Geneva’s Common Article 3 applies to all detainees, CIA interrogators scrambled to buy legal-defense insurance. Bush administration lawyers had led them to believe that Geneva did not apply to “enemy combatants,” and that waterboarding and other abuses were legal.

Thus the hurry to pass the Military Commissions Act before Republicans lose control of Congress this November.

The act parses the meaning of cruelty and grants legal immunity retroactive to 1997 for both interrogators and senior officials involved in all but “grave” prisoner abuses.

The president decides what is “grave.” The act bars courts from reviewing his decisions.

A recent estimate says that America holds 14,000 prisoners in camps from Bagram (Afghanistan) to Guantanamo. Retired Army Major General John Batiste testified recently that of 13,000-plus once held in Iraq’s Abu Ghraib prison, “probably 99 percent … were guilty of absolutely nothing,” but “the way we abused them turned them against the effort in Iraq forever.”

Stay this course? No.

Raise questions about prisoner treatment and hardliners suggest you “don’t get it,” and invariably change the subject to al Qaeda’s barbarity. “The terrorists” deserve no rights.

Assuming that’s true, then presumably the innocent do. Justice, honor and decency demand that. What percentage of those 14,000 prisoners are guilty of nothing? Which are “the terrorists” deserving military justice?

The administration won’t say and thinks patriots wouldn’t ask. Americans who do are soft on terrorism.

The detainee treatment question is not about the blackness of terrorists’ hearts.

It is about our own hearts. About our standards of behavior, not theirs. Neitzsche cautioned, "He who fights with monsters might take care lest he thereby become a monster."

Fighting terrorism requires tough measures. Tough, but smart. And effective.

Promoting democracy requires living by our principles, not retreating from them.

America aspires to set a standard for the world, a moral high bar so high that sometimes she fails in reaching it. In our post-9/11 zeal we allowed our enemies to re-set that bar for us – ankle-high. Stay one step above those who cut off prisoners' heads on videotape and we can still claim moral superiority. Not that the world will pay attention any longer.

Osama bin Laden wants to destroy America? He needn’t bother. We just might do it for him.